Law lords back couple's plea to create designer baby to cure son

Five law lords ruled unanimously that a technique to test whether an embryo will grow into a child whose tissue will match that of a brother or sister was lawful.

The case was a victory for Raj and Shahana Hashmi, from Leeds, who won an appeal in 2003 allowing them to create a donor sibling for their six-year-old son, Zain, who suffers from beta thalassaemia major, a rare blood disorder.

They hope that stem cells from a new baby's umbilical cord will cure Zain, who has painful blood transfusions every three to four weeks and drugs from a drip for 12 hours, five nights a week.

The Court of Appeal ruled two years ago that the Hashmis could use pre-implantation genetic diagnosis (PGD) to test whether embryos are healthy, and tissue typing to ensure that cells from their next child's umbilical cord were compatible with those of their son.

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But the ruling was challenged by Josephine Quintavalle, who launched the original legal challenge against the licence granted to Dr Simon Fishel by the Human Fertilisation and Embryology Authority in February 2002.

The director of Comment on Reproductive Ethics, a pro-life pressure group, she argued that the HFEA did not have the power to grant a licence to permit tissue typing.

She claimed that the Court of Appeal was wrong in concluding that tissue typing was a treatment permissible under the Human Fertilisation and Embryology Act 1990 because the service was not done for the purpose of "assisting women to carry children".

The HFEA argued that without such testing, Mrs Hashmi could not make an informed choice as to whether she wanted the embryo placed in her body or not. But dismissing the challenge yesterday, Lord Brown of Eaton-Under-Heywood said the case turned on the meaning of legislation passed in 1990.

Parliament said the HFEA could issue licences for activities designed to determine whether an embryo is suitable for placing in a woman.

It could also offer licences for practices it believed were "necessary or desirable" for the purpose of assisting a woman to carry children.

Lord Brown said he had initially supported the argument that tissue typing was unlawful because it involved a woman having a child "specifically selected for the purpose of treating someone else".

However, he later came to the conclusion that there was "no logical basis" for limiting the authority's power to screening embryos for genetic disorders. He added: "In the unlikely event that the authority were to propose licensing genetic selection for purely social reasons, Parliament would surely act at once to remove that possibility."

Mrs Hashmi, 41, said after the hearing that she was delighted with the ruling.

"It's nice to know that society has now embraced the technology to cure the sick and take away the pain," she said. "It has been a long and hard battle for all the family and we have finally heard the news we wanted to hear. We feel this ruling marks a new era."

Mrs Hashmi had twice conceived naturally in the hope of giving birth to a child whose umbilical blood could provide stem cells for Zain.

On the first attempt the foetus was found to have beta thalassaemia major and she had an abortion. On the second occasion she gave birth to a child whose tissue turned out not to be compatible

Alison Murdoch, the chairman of the British Fertility Society, said: "For any parents to go through what the Hashmis have been through to help their sick child proves they are wonderful parents.

"Therefore, the state should back out of this and leave these decisions to the people best able to make them - the families and their doctors."

A spokesman for the HFEA said: "We are pleased with the clarity that this ruling brings for patients. The HFEA will continue to consider licences for pre-implantation genetic testing including tissue testing. We will grant these where it can be shown to be necessary and desirable in providing treatment."

But Life, the pro-life charity, said it was saddened by the decision to give the go ahead to produce "designer babies" to cure sick siblings. "We have every sympathy for parents of children with serious conditions and understand their desperation to find a cure but the creation of a human being to "fix" another is unjustifiable," said a spokesman.